us copyright office: ar-1996

8/14/2019 US Copyright Office: ar-1996

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A N N U A L R E P O R T OF T H EL I B R A R I A N OF C O N G R E S S

FOR THE FISCAL YEAR ENDING30 SEPTEMBER 1996

LIBRARY OF CONGRESSW A S H I N G T O N

1997


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C o r n GHT ISSUESSevclal bills were ntroduced during the 104th Congress providing for majorchanges in the copyright statute. One iegidative measure, H.R 989, S. 483,would have added twenty years to the basic copyright term. In testimoniesbefore the House and Senate Committees during fiscal 1995, the Register ofCopyrights proposed a limited exemption during this additional period forcertain nonprofit educational activities sponsored by the Library of Congress.Similarly, library and educational groups proposed expanding this exemptionto allow noncommercial use of capyighted works duiing the last twentyyearsof the copyright term. The Registerwas asked to faciliate an agreementbetween copyright owners and libraries and educational institutions thatcould be added to the bill.The CopyrightOfIice hosted a seriesof meetings between December 1995and May 1996to negotiate a limited exemption. The parties, however, couldnot agree on specific language.As a result, the Register of Copyrights for-warded independent proposals to the House and SenateJudicky Commit-tees. In the end, neither a House nor a Senate version of an extensionmeaswe was passed owing, in part, to linkageof the legislation to issuesregarding music licensing.Major copyright legislation,affecting both copyright owners and users,wasintroduced in both the House (H.R 2441) and Senate (S. 1284) with theintention of adapting the copyright law to the digital, networked environmentThe Register testified at a joint Senate/House hearing on the legislation inNovember 1995.The 104th Congress adjourned without enacting either bill.At the request of the Copyright Office, H.R 1861was introduced by Represen-tative Carlos Moorhead (RGalif.), chairman of the Subcommittee on Courtsand Intellectual Property, onJune 15,1995; the proposed bii made a numberof technical corrections to the copyright law, and included a provision on theCopyright m c e ' s authority to raise its fees. The bill, as passed by a voice vote


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in the House on June 4,1996,would allow the otke to r a k tsSKS up to tidlcost recovery, subject to congressional veto.However, he Senate failed to acton the bill before adjournmentSeveral bills were introduced to restructure the U.S.Patent and TrademarkOffice (FTO) as a government corporation. These bills would give the p mposed U.S. Intellectual Property Organization a copyright policy function,thereby eroding the Copyright Office's historical policy-making role. Onesuch bill, the Omnibus Patent Act of 1996 (S. 1961),would have removed theCopyright Oace from the Libmy. The Librarian and the Register stronglyopposed this bill in statements to the Senate Committee on the Judiciary; theRegister testified to that effect on September 16,1996. During a SenateJudi-ciary Committee hearing held that day, Chairman On in G. Hatch (R-Utah)indicated that copyright provisions would not be included in any VTO legisla-tion passed during the 104thCongress.At the end of the 104th Congress, norestructuring legidation had been enacted.


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The Copyright Office faced many challenges during fiscal 1996, including aproposed Senate bill which would have transferred the Copyright Office out ofthe Library of Congress (see also The Library and the Congress).During the year, the Copyright Office undertook a major regulatory initiativeinvolving registration of photographs, successfully defended several law suits,registered and recorded documents concerning old works restored under theUruguay Round Agreements Act (URAA),and oversaw the efforts of the firstCopyright Arbitration Royalty Panel (CARP),which handled more than $550million in cable royalties covering the years 1-92.The office delivered to Congress on March 1,1996 a major report regardingthe impact of the waiver of moral rights provisions in the =sual Artists RightsAct of 1990 (VARA)During fiscal 1996, the office received more than 620,000 claims representingover 700,000 works. Some 550,000 claims were registered and more than16,600 documents, containing over 100,000 titles, were recorded. Receiptsfrom licensing fees totaled $187,455,015. The number of requests from thepublic for information increased to 432,397.On November 16,1995, the Copyright Acquisitions Division, which had beentransferred to Collections Senices in 1990,was returned to the CopyrightOffice. This division administered section 407 of the law, the mandatorydeposit provisions, and monitored publishers's deposits and issued demandsas necessary.COPYRIGHTOFFICE LECI'RONIC REGISTRATION,RECORDATION,AND DEPOSIT SYSTEM (CORDS)Development continued on the Copyright M c e Electronic Registration,Recordation, and Deposit System (CORDS), which permits electronicregisbation and depositvia the Internet.


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The Corporation for National Research Initiativn (CNRI), workingwith theCopyright Office and the Library's Information Technology Services(m),ran a live test at Carnegie Mellon University on February 27,19!36. Four applkcations and accompanying copyright works (unpublished computer sciencetechnical reports) were successllly transmitted over the internet and pro-cessed by the Copyright Office: certificates were issued to the copyright ho ldem.Additional development work was done on CORDS prior to fullproduction delivery late in September.Meanwhile, the office, through its own home page, continued to use the Inter-net and other new technologies to disseminate public information and to pro-vide electronic access to the ofEce's registration and recordation databases.Application forms, regulations and new procedures were allmade availablethrough the Internet A new senice called faxandemand was introduced.INTERNATIONALAcxwrrmOn October 1,1995,the newly appointed associate register for pdicy andinternationalaffairs oined the staff. During fiscal 1996,shewas oined by twopolicy planning advisers and an attorney adviser.As a result, theCoprightm c e ubstantially increased its support to the United Stares Trade Represen-tative in negotiating and monitoring bilateral and multilateral intellectualproperty agreements with other countries.During the year, the Copyright Office sponsored two InternationalCopyrightInstitute programs. The first, for eight former Soviet republics,was cospon-sored by the World Intellectual Property Organization on june 24-26. Theprogram was held in both Washington and Geneva. The second program was

the Commissioner of the National Copyright Administration of Chinaandtop staff and included meetings in Washington and NewYork City on27 and 28.Copyright Officewas active as a technical adviser to theClinton Adminibon in all of the preparatory work for the Workl Intellectual Property

tion (WIPO) Committee of Experts meetings. The meetings wereon three possible new treaties-one which would update the Beme Con-on, one which would provide increased protection for performers anducers of sound recordings, and one which would provide intellectual


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property protection to databases that do not meet the originality test requiredby copyright law.The office served as the primary source of U.S. expertise in the World TradeOrganization review in Geneva of the copyright laws of all developed coun-tries, aswell as on 301 (Omnibus Trade and Competitiveness Act of 1988).The office met with more than one hundred foreign visitors from developingcountries to provide a greater understanding of U.S. copyright law. Membersof governmental and private sector delegations included Chinese officialsresponsible for copyright enforcement, udges from Thailand, governmentofficials from the Middle East, and publishers from Egypt and Hungary.The office worked extensively with the U.S. Trade Representative's Office onreviewing other countries' copyright laws for a special 301 review to determinewhether trade sanctions were appropriate. It continued to help foreign coummes revise their copyright laws to be compatible with the Agreement on Tladc.Related Aspects of Intellectual Property and the Berne Convention.An office attorney served on the U.S. delegation to the first meeting of theFree Trade Agreement of the Americas (FTAA)Working Group. The group isresponsible for identifying and making recommendations on rra'de-relatedmeasures involving intellectual property rights, and for making specific recorn-mendations on the FTAA.With respect to implementation of the Uruguay Round Agreements Act, theoffice started receiving both notices of intent to enforce restored copyrightsand applications representing claims to copyright in such works.DOMESTIC A

Following the 125th anniversary of the Copyright Office's placement in theLibrary of Congress, Senator On in G. Hatch introduced legislation that wouldmove the Copyright Office out of the Library and into a new government cor-polation called the U.S. Intellectual Property Organization. The bill, S. 1961,introduced on July 16,1996, would have joined the Copyright Office with thrPatent and Trademark Office in a corporation associated with the Departme111of Commerce.


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On September18,1996,the Register testified against S. 1961before theSenate Committee on thejudiciary. The Librarian submitted a statementexpressing concern about the proposal's &ect on the Library of Congress,especially the Library's ability to meet its acquisitionne+ through the registration and deposit mechanisms of the present copyright law. HeMid: 'Thestrength of the Libmy of Congress and its ability to serve the Congress andthe nation depend on the presence of the Copyright Offlce in this institution.The effective administration and protection of our copyright laws depend onthe retention of both copyright practices and policy within the CopyrightOEice, within the Library of Congress, and within the legislative branch."The Register cautioned against abandoning the existing structure in favor ofone that was untested and inherently flawed.She stated that her officewasunaware of any request for change from any segment of the copyrightcommunity.Moreover, the Register expressed concern about the potential impact on copyright fees and the resulting damage that would be done to the existing systemof registration and deposit. A substantial fee increase would render the bene-fits of registration unavailable to many authors and proprietors, and wouldresult in a diminished public database of information about copyrightedworks. The bill would also deprive Congress of the nonpartisan advice of theCopyright Office, whoseviews as part of the proposed new corporation wouldbe driven by executive branch politics andeconomic concerns.

The copyright provisions were removed !?om the bill, which died in the 104thCongress.On March 1,1996,the Register delivered a report to Congress based on theresults of a five-yearstudy to assess the impact of the waiver of moral rightsprovisions in the Visual Artists Rights Act of 1990 (VARA).The act grants themoral rights of attribution and integrity to authors of certain "works of visualart"as defined in the CopyrightAc t The authors of these works of fine art andexhibition photography have the right to claim or disclaim authorship and, inRome cases, to prevent distortion, mutilation, or modification of a work. Theoffice studied the effect of an artist's ability underVARA o waive his o r he rmoral rights in a signed, written agreement specifying the work and uses ofh e work to which the waiver applies.


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The Register conduded that because VARA is in its infancy, because manyartists are still unaware of moral righrs, and because federal courts hawoffered little guidance on application ofVARA todate, no legislative action iscurrently warranted to modifyVARA.The Registeralso testified on several other important bills. On November 15,1995, she supported the general approach of the NII legislation (the NationalInformation Protection Act of 1995, S.1284 and H.R 2441) before a jointhearing of the Senate Committee on the udiciary and the House Subcommit-tee on Courts and Intellectual Property. The major provisions dealt with clari-fying the law concerning transmissions of works over global networks andimproving enforcement mechanisms by providing safeguards for the technol-ogy on which copyright ownerswill rely in disseminating works on the NII.The bill would have provided protection for technological solutions to copy-ing and for protecting the integrity of information provided to facilitate identification and licensing of copyrighted works (that is, copyright managementinformation).Although supporting the concept of outlawing devices or ser-vices that defeat copyright protection systems and promoting the integrity ofcopyright management information, the Register raised both drafting issuesand concerns about the scope of the conduct deemed unlawful.The bills resulted in controvemy; much debate was centered on issues notaddressed in the legislation. These included the applicability of "fair use." andspecifically the legal status of what is known as "browsing," the status of the*first sale" doctrine when copies of works are distributed by transmission, andliability for on-line service providers and Internet access providers wheninfringing works are msm it ted over their services. However, the bills died inthe 104th Congress.The Register also testified on November 9,1995, on a House bill addressingimportant copyright uhousekeeping" ssues. H.R 1861, introduced by Chair-man Carlos Moorhead of the Subcommittee on Courts and IntellectualProperty, would have amended the Satellite Home =ewer Act of 1994 to cor-rect a number of errors, clarified the royalty rates, restored the definitions of ajukebox and a ukebox operator to section 116, and clarified that jukeboxnegotiated licenses that require arbitration and rate proceedings under thepublic broadcasting compulsoly licenses are CARP proceedings.


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so addressed certain fee issues. It would have authorized the Copyce, under section 708(b), to raise its fees in my year to cumulate the

er Price Index from the last fee increase.The Register suggested thatoffice also be allowed to investfees from "deposit accounts" (prepaid feest are not needed to meet current demands or services) in interesthearing

ties in the United States Treasury, and to use any interest earned.g the November 9 hearing, a number of amendments were made to

cluding many proposed by the CopyrightOEice.They included:) allowing the office to raise all fees up to111 cost recovery, with Congress

etaining veto power; (2 ) allowing theoffice to invest prepaid fees n interest-bearing securities; (3) clarifying that distribution of phonorecords of musicdistributed before 1978 did not put themusic in the public domain--in otherwords to restore the law to what it wasbefore the decision of the Ninth CircuitCourt of Appeals in La CtenegvlMusic Co.v. ZZ Tops,44e4.M 813 (9thCu.)&. denied64 U.S.L.W. 3262 (O ct 10,1995); 4) clarifying certain provisionsi f the Uruguay Round AgreementsAct, including the date foreign copyrightswere restored and includingUS. opyright owners as reliance parties who areentitled to take advantage of the derivative works provisions, and (5) amend-ing section 117 to ensure that independent sexvice organizations do not inad-vertently become liable for copyright infringement merely because they haveturned on a machine in order to service its hardware components. The billpassed the House inJune and was referred to the.SenateJudiciary CommitteeinJuly. However, no further actionwas aken during the 104thCongress.


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37Februay Copyright Office meiver first digital coWright application and deposit(fromCamegicMellon University) using Copyright Office Elecmnic Regismtion, Recordation, andI k G t System (CORDS).1March Register ofCopyrigQtsMarybeth Peters delivers a report to Congress on a five-yearstudy of impact of provisions of V i s d Artists Rights Act of 1990 that allowswaiver of moralrights by certain types of artists.


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14. C O r Y R l G I f r R E C ~ T I O N S(number of rqkwiornby subjectmttm,fhul1996)

Nondmatic literary worksMonographs and computer-rrlated works 139,248 47,967

SerialsSerials (non-group) 74,455 -Group daily newspapen 2,509 -Group serials 6,472 -

TOTAL, literary wo rk 222,684 47,967Works of the performing a m , ncluding

musical works, dramatic works,choreography and pantomimes,and motion pichlres and filmships 46,892 86,738

Works of the visual arts. includinghvedimensional works of fine and graphicart, sculpttual works, technical drawingsand models, photographs. cartographicworks, commercial prints and labels, andworks of the applied arts 65,109 26,531

Sound recordingsTOTAL

R e n d - -Mask work registrations - -GRAND TOTAL, all registrations - -Documents recorded - -


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15. COPYRIGHT BUSINESSSUMMARY(fm e i v d ,iscal 1996)

Applications for registrationFees for ma& worksRenewals

TOTALFees for recordation of documentsFees for certificationsFees for searchesFees for expedited semcesFees for other semces

TOTALGRAND TOTAL